66th Congress'! 
2d Session | 


HOUSE OF REPRESENTATIVES 


f Document 
1 No. 640 


OVERNMENT BY INJUNCTION 


SPEECH 


BY 


HON. JOHN A. McMAHON 


TO THE MEMBERS 
OF THE 


OHIO STATE BAR ASSOCIATION 


AT DAYTON, OHIO 


JANUARY 23 .1920 



February 2, 1920—Ordered to be printed 


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WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1920 



























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GOVERNMENT BY INJUNCTION. 


Speech by Hon. John A. McMahon to the Members of the Ohio State 
Bar Association. 


[From the Dayton (Ohio) Daily News, Jan. 24, 1920.] x 

Welcoming to Dayton the members of the Ohio State Bar Associa¬ 
tion, at their annual meeting in this city Friday, Hon. John A. 
McMahon, dean of the Dayton bar, delivered an address on “Govern¬ 
ment by injunction,” in which he brought out many points of vital 
interest to every citizen, and especially to the laboring men of the 
country. Handling the subject impartially and careful to credit both 
sides in our present labor disputes with all things to which they are 
entitled, he reviewed in detail the situation as it exists to-day, and 
pointed out conditions certain to obtain unless both labor and capital 
put a proper construction upon the meaning of “strikes.” 

“There is no recorded case where workingmen have been com¬ 
pelled to return to work by the order of any court,” declared Judge 
McMahon in the course of his remarks. “Of course a general coal 
or railroad strike intended to freeze or starve the general public 
presents a special question. Every Government is entitled to pre¬ 
serve itself or its people when the conditions arise that necessarily 
follow a general conceded and simultaneous quitting of work.” 

He pays a tribute to labor, and reviews the platform recently 
adopted by organizations affiliated with the American Federation of 
Labor. In doing so he points out that the courts of this country 
offer to the laboring man his greatest protection, and shows that 
without them conditions bordering upon those now existing in 
Russia would prevail. 

Of such vital interest was Judge McMahon’s address and, carrying 
as it does so much that is valuable to labor and capital alike, it 
is here reproduced in its entirety, eliminating only a few pleasantries 
introduced in welcoming the visiting attorneys: 

“I have been chosen, as the senior member of the Dayton bar, 
to welcome you to our city. It is a high honor. I doubt my physical 
capacity to be equal to the occasion. As to the mental outfit you 
must be the judge. It is not for me to depreciate myself. I can 
only say, in the cryptic language of an ancient Dayton lawyer, in 
delivering a Fourth of July address many years ago: 4 It meaneth not 
my adequacy to be satisfactory.’ You who are skilled in the inter¬ 
pretation of wills, contracts, and statutes must decipher this for your¬ 
selves. The job may be equal to an interpretation of the League of 
Nations. Do not be alarmed, my brethren. This is not the subject 
of my address. We have invited you here as our guests and do not 
wish to disperse you on the first day. Our young men think they 

3 




4 


GOVERNMENT BY INJUNCTION. 


have much to show you, and to learn much from the meeting with 
so many able and experienced men of the profession, to say nothing of 
the pleasure of association with so many congenial and delightful com¬ 
panions, as nearly all lawyers are—or at least were before prohibi¬ 
tion stalked into our midst. Whether our constitutions will change 
with the other constitutions, who can say ? At any’ rate until the 
stocks on hand are depleted, and the bootlegger is finally sup¬ 
pressed, we are not entirely bereft. For the present we are living 
under the headway of the past, and we defy the enemy. As to 
the future we can join with the illustrious Micawber in 1 waiting for 
something to turn up.’ 

“In the meantime the members of the committee, as well as the 
members of the bar generally, will do their best in dispensing Dayton 
hospitality in accordance with the precedents heretofore established/ 
And in their behalf and on behalf of the citizens of Dayton we wel¬ 
come you with the greatest cordiality, wishing you as much pleasure 
in your visit as you have conferred pleasure and honor by coming to 
see us. 

“The city is yours for the time being. Do not fear to avail your¬ 
self of its privileges. The judges of all the criminal courts, the whole 
staff of the office of the prosecuting attorney and of the office of the 
city solicitor are with us in this greeting, and to make assurance doubly 
sure the judges who preside in the courts of last resort will be particeps 
criminis, and unfitted to judge you harshly. We can not guar¬ 
antee you against one powerful member of society, however. You 
must take your chances with the rest of us with the autocrat of the 
automobile. When you get to the street crossing our warranty of 
safety expires. Keep your eyes on the traffic policeman, say a short 
prayer, think of the dear ones at home, cast your eyes both ways for 
a car, especially in the direction the car is coming, and start across 
with hope, if not with confidence. If anything untoward happens, 
the worthy coroner will give you a verdict; those of us who are left 
will commemorate your memory in resolutions that would surprise 
you in the next world, if as Sir Oliver Lodge says, there is communica¬ 
tion between the spirits of the seen and the unseen world. We can 
not say that you died upon the glorious battlefield of Cantigny, Cha- 
teau-Thierry, or the deadly Argonne, but we will come as near to it 
as a decent regard for truth will permit. One other danger we can 
assure you against. Although you are all ‘intellectual/ no Lenin or 
bloody Trotski will bar your way. 

“All jesting aside, my brethren, this is a memorable occasion, and 
I hope it will be a memorable meeting. The profession we represent 
is one of immense importance. While the most of us are engaged in 
no greater work than the settlement or trial of disputes between 
neighbors or business men about contracts, wills, personal injuries, 
patent claims, etc., this individual work is the necessary part of the 
great system whereby the fabric of government is made stable. 
In the great variety of business which grows up in a civilized com¬ 
munity, society is divided into innumerable specialized occupations. 
Some are farmers, merchants, manufacturers, machinists, doctors, 
ministers, railroaders, bakers, teachers, druggists, day laborers, 
clerks, lawyers, bookkeepers, etc. Most of them are productive occu¬ 
pations; some, especially the professional ones, are nonproductive, 
but equally as essential to society as the others. All are necessary 


GOVERNMENT BY INJUNCTION. 


5 


to a civilized community. Each one fills a niche, and when he per¬ 
forms his duty, obeying its laws and fulfilling his duties as a citizen, 
such person is an honorable member of his State or city, no matter 
how humble his occupation or how moderate his income. 

“ Lawyers can boast that our profession leads us into broader paths 
than almost any other occupation. In settling the controversies that 
arise in our communities we are the ministers of justice and assist in 
the preservation of the peace. In the handling of these disputes we 
must frequently familiarize ourselves with the details of the business 
in which they arise. In a city of the size of Dayton, or even smaller, 
a lawyer may become for the time being a doctor, a surgeon, a min¬ 
ister of the gospel, a chemist, a bookkeeper, a skilled mechanic in any 
trade in order to understand his case and its technical testimony and 
to cope with the vagaries of those who are called as experts in the 
business. We have one additional cause for pride. Many of us are 
called into positions of honor, where an accurate knowledge of law is 
essential. We are all born members of the legislature or of Congress, 
and might all be there if there was room enough. The broader 
questions of city, State, National, international government are ours 
to settle when law is involved, and while the positions are few com¬ 
pared to the large number of lawyers, the road to the highest position 
is broad and opened to us all. Neither birth, nor wealth, nor other 
European qualifications is necessary. Industry, integrity, persever¬ 
ance, and brains are the only essentials. 

“We have a right to be proud of our profession and of its history 
and the record of its members. They have stood in the forefront 
when liberty was concerned. I do not need to allude to the pages of 
English history. The American Revolution is sufficient object les¬ 
son. In the military annals of that period what names more strik¬ 
ing than Hamilton, Marshall ? And when the war was won who took 
the leading part in the framing and adoption of the great charter of 
our liberties, the Constitution, by which the States were bound together 
by solemn agreement? The story has been so often told to us in 
childhood and manhood as to need no repetition before so learned 
an assembly. 

LOOKING TOWARD THE FUTURE. 

“In these times the future is more important than the past. Our 
forefathers fought for and achieved liberty. They established per¬ 
petual peace by the league of States or a union of the people of the 
States, if you prefer the language. It is our duty to preserve the 
Union by preserving the Constitution, which is its sole tie. It is 
the agreement under which we came together. If we abandon the 
agreement, a condition of Balkanism would arise far exceeding in 
disastrous results the European imbroglio. It would install war 
instead of peace, anarchy in place of government, and barbarism, 
finally, instead of civilization. 

“The war has disturbed and prostrated Europe and Asia. Its 
results have not been fortunate for us. We are confronted with all 
sorts of problems—chief among which is the high cost of living, the 
antics of a few thousand mild-eyed foreigners, and what Shakespeare 
would call ‘the damnable iteration’ of the United States Senate in 
its never-ending gabble over the treaty. The audience need not be 
alarmed. I will not discuss any of these. As a distinguished gov- 


6 


GOVERNMENT BY INJUNCTION. 


ernor of Ohio once said, in real gubernatorial language, when he was 
seeking to quiet the inmates of a hotel when a midnight fire was in 
progress near by: -‘Do not be alarmed, ladies, the fire is not here; it 
is elsewhere.” So with my discussion. It is 1 elsewhere/ Among 
other internal troubles we have had strikes of every kind, in every 
place, and for all sorts of reasons. I am not about to discuss them. 
But they lead up to a situation in our affairs which concern us most 
intimately as lawyers or judges or persons connected with govern¬ 
ment and as lovers of our form of government. 

labor’s platform. 

“ Pending one of the great strikes in which the miners believed 
themselves justified in freezing the innocent bystanders all over 
the United States in order to compel a few employers to comply 
with their demands (about the justice of which I, in common with 
many others, am unable to give an opinion), President Gompers 
called together at Washington a formidable meeting of the repre¬ 
sentatives of 119 national and international unions said to represent 
4,000,000 workers tied up with The American Federation of Labor. 
The purpose of the meeting was to formulate a platform of principles, 
and to lay down the law to Congress, the administration, and all 
other evil-minded persons. 

“ There is much in this platform to which no exception can be 
taken. Much of it is mere platform stuff intended for the ground¬ 
lings. But there are some propositions that should be fully con¬ 
sidered and discussed by lawyers, as they concern us especially. 

“I quote from the reported platform as follows: 

Powerful forces are seeking more and more aggressively to deny to wage earners 
their right to cease work. We denounce these efforts as vicious and destructive of 
the mos* precious liberties of our people. The right to cease work—strike—as a 
final means of enforcing justice from an autocratic control of industry must be main¬ 
tained. 

******* 

We realize fully all that is involved in the exercise of the right to strike, but only 
by the exercise of that right can industrial autocrats be compelled to abandon their 
concept of tyranny and give way to the establishment of freedom and justice in 
industry. 

******* 
Government by injunction has grown out of the perversion of the injunction process. 
By the misuse of that process workers have been forbidden to do those things which 
they have a natural and constitutional right to do. 

******* 

The injunction as now used is a revolutionary measure, which substitutes govern¬ 
ment by judicial discretion or bias for government by law. It substitutes a trial by 
one man, a judge, in Ids discretion, for a trial by jury. This abuse of the injunctive 
process undermines and destroys the very foundations of our free institutions. It 
is subversive of the spirit of a free people working out their destiny in an orderly and 
rational manner. 

******* 

We urge that the judges of our Federal courts shall be elected by the people for 
terms not exceeding six years. 

******* 

We assert that there can not be found in the Constitution of the United States or 
in the discussions of the Congress which drafted the Constitution any authority for 
the Federal courts of our country to declare unconstitutional any act passed by 
Congress. We call upon the people of our country to demand that the Congress of 
the United States shall take action for the purpose of preventing the Federal courts 
from continuing the usurpation of such authority. 


GOVERNMENT BY INJUNCTION. 


7 


“Here is a carefully prepared platform, the work of some lawyer 
which not only concerns us as members of the profession, but every 
citizen who loves his country and believes that its prosperity depends 
upon the enactment of good laws, their observance and the preserva¬ 
tion of order, through the power of the courts, as the proper author¬ 
ity to determine what are the rights of men or associations of men, 
when controversies arise between them—especially when the num¬ 
bers are great and threaten the peace of society. 

“The Federation of Labor is manifestly within its rights in an¬ 
nouncing its platform. It does not advocate force to overthrow the 
Constitution. And as it denounced the methods of the I. W. W. 
and the Bolsheviki, it has a right to urge the adoption of its ideas as 
stated in its platform by the methods and in the manner provided in 
the Constitution. And the members of the unions are entitled to 

a er consideration of their views. It has been too much the habit 
Bnounce the ideas of persons with whom we disagree, or whose 
views are inimical to our interests. It is our duty as lawyers to take 
up these subjects in our counties when they arise, and to give to the 
people and especially to members of the unions the proper argument 
to show them the fallacy of their theories or the falsity of the facts 
upon which some of them are founded, if we do not agree with them. 

, THE RIGHT TO CEASE WORK. 

“I approach this argument with this feeling: The great multitude 
of our people have little acquaintance with the situation and are 
open to conviction. And our profession puts us under obligation to 
furnish them the information upon which they must act, for this 
has been our life study. 

“I have said that this part of the platform was prepared, in my 
judgment, by a lawyer. It is as remarkable for what it does not say 
as for what it claims. For example, under the title ‘The right to 
strike/ we find the words used to describe this right as follows: ‘The 
right to cease work, strike, as a, final means of enforcing justice from 
an autocratic control of industry/ Here the official definition of the 
word strike is ‘ the right to cease work/ 

“If that is the whole meaning of the word ‘strike’ we shall have 
little quarrel, except in the case of policemen, firemen, railroad men 
in a body, and other public employees who owe a duty to the public, 
and whose services are essential to the public life or safety. As to 
them even no one will doubt the individual right to resign; that is, to 
‘cease work/ when they find better employment. But to become 
affiliated with another powerful organization and subject to its 
orders, assuming inconsistent obligations, and pursuant thereto to 
resign in a body and abandon the great city of Boston to the thugs 
of their own and other neighboring cities, was an unspeakable offense,, 
deserving of the punishment it received, and the public condemnation 
of the demagogues who abetted them, in the election of Gov. Coolidge, 
notwithstanding the efforts of trimming politicians to prevent it. 

“Outside of the claim made that public officials should not be per¬ 
mitted to connect up their own local organizations with the American 
Federation and be subject to their orders there is no recorded case 
where workingmen.have been compelled to return to work by the 
order of any court, even where the unions were bound up by contracts 


8 


GOVERNMENT BY INJUNCTION. 


in writing which had not expired. There is no law that compels a 
man to work when he chooses to cease work. Of course, a general 
coal or railroad strike intended to freeze or starve the general public 
presents a special question. Every Government is entitled to pre¬ 
serve itself or its people when the conditions arise that necessarily 
follow a general concerted and simultaneous quitting of work— 
especially when it is in possession of the war powers still existing. 

“ Evidently the shrewd lawyer who drew the platform appreciated 
the difficulties of his job. We all know that in common parlance 
and practice the word ‘ strike’ means much more than ‘ceasing work/ 
and it is this part of the practice that has been enjoined by the courts. 
We know, as a matter of fact, that when a general strike is called at 
any factory or other place of work it is not long before pickets, some¬ 
times in large numbers, are thrown out to cover every approach by 
new hands. Persuasion, intimidation, and violence are often used 
to prevent anyone from going to work. The police are called in. 
Finally the troops. 

THE RIGHT TO PICKET. 

“Does the right to strike extend to the right to picket and the 
persuasion of new workers not to enter the factory? If so, how 
many pickets ? Or does it extend further to intimidating either the 
employer or his new workers ? Or may the men who have ‘ ceased 
to work’ finally resort to violence at the factory or in the streets or 
in the alleys at night, or maiming those who may be willing or anxious 
to work in the deserted factory, or who are so engaged ? 

„ “When strikes take place and intimidation or violence actually 
result, who shall be the judges as to how far the rights of the parties 
extend ? The two contending parties have no tribunal to appeal to, 
except the established courts of the country, the judges thereof being 
most generally men of learning in the law and unimpeachable in¬ 
tegrity, whose independence, if at all qualified, leans more to the 
man who labors than to his employer. When the court finds that 
the worker has exceeded his right to strike by resorting to intimida¬ 
tion or persuasion amounting to intimidation or violence, or other 
exceptional means, it issues an injunction to prevent the invasion of 
the other man’s rights and he is punished for contempt if he disobeys. 

“Here I again recur to the platform, particularly to that part 
which proposes to abolish injunctions in such cases. Here facts are 
falsified, or at least so colored as to amount to a fraud upon the honest 
union man who has not contrary knowledge. The platform avers 
that by the misuse of the injunction ‘ workers have been forbidden to 
do those things which they have a natural and constitutional right 
to do.’ It may happen in isolated cases that judges may have erred 
or been extreme from want to knowledge or from the circumstances 
surrounding the case. But I deny that any respectable court, es¬ 
pecially of the last resort, ‘has forbidden workers to do things which 
they had the natural or constitutional right to do.’ The astute law¬ 
yer who drew these declarations was too keen to specify the things 
which judges had so ruled. Specification was dangerous. He knew 
the rulings of the courts are all a matter of record, and that if the 
things complained of were wrong he had only to cite the case and the 
facts to let us know what right had been denied the worker and when 
and where. The Supreme Court of the United States has made a 


GOVERNMENT BY INJUNCTION. 


9 


record upon these questions, and nearly every State supreme court 
as well and to one who has knowledge of what has been decided this 
part of the platform is a combination of deceit and falsehood, worked 
up in fustian style to deceive the worker by the use of clap-trap 
language, viz: ‘Government by injunction/ stating untruly that in¬ 
junction as now used is a revolutionary measure, which substitutes 
government by judicial discretion or bias for government by law. 
I affirm the contrary. It enforces only those rights which exist in 
law and prevents the overthrow of law and order by forbidding the 
invasion of the rights of others by force or intimidation. It is an 
ancient familiar remedy and properly applied when the situation 
calling for and justifying it occurs. 

“Let us examine the familiar uses to which the writ of injunction 
is put—the great bulwark provided by the law from ancient times to 
prevent the oppression of the weak by the strong. And there let me 
quote the first section of the bill of rights of the Constitution of Ohio, 
being Article I: 

1 ‘Section 1 . All men are by nature free and independent, and have certain inalien¬ 
able rights, among which are those of enjoying life and liberty, acquiring possession 
and protecting property, and seeking and obtaining happiness and safety. 

“This is to a certain extent duplicated in the thirteenth, four¬ 
teenth, and fifteenth amendments to the United States Constitution. 

GOVERNMENT BY INJUNCTION. 

“A more comprehensive statement of the foundations upon which 
a republic is based can not be found anywhere. It is not a preamble. 
It is a declaration of rights innate, inalienable. I see in it no dis¬ 
tinction of classes. Based upon this declaration, which has been in 
our constitution practically since it became a State, and other pro¬ 
visions of that instrument, courts of equity have habitually granted 
injunctions in the greatest variety of cases. For the benefit of the 
person unlearned in the law I state a few. The bar is well informed 
on this subject. 

“If there is a line dispute between two farmers or lot owners in a 
city, and the man of force undertakes to throw down the fence, the 
man of peace is accorded an injunction to prevent the removal until 
the court finds out who is right. So if one owner builds a dam and 
floods his neighbor’s farm, or diverts a spring or a stream of water 
necessary for his cattle and household purposes, or shuts up a right of 
way to the public road, or digs a ditch which throws the water into 
unusual channels, the court interferes. So if a man steals your patent, 
is guilty of unfair competition, counterfeits your trade marks, or en¬ 
deavors to persuade your valuable clerks who are under contract or 
your inventors who have secrets and confidential information, the 
court of equity steps in with an injunction. If you sell a lot with 
building restrictions, equity compels the purchaser to observe them 
by forbidding him to violate his contract. If a nuisance is about to 
be erected in your neighborhood, you can depend upon the court to 
give you protection. If an improper tax or assessment is levied upon 
property, you can enjoin the collection until its propriety is tried. 
If the city council passes an illegal. ordinance, under which your 
rights are invaded, you can enjoin action until its validity is passed 
upon. If you own a piece of property and some one is claiming an 


10 


GOVERNMENT BY INJUNCTION. 


adverse interest, you can enjoin him from asserting it, as it damages 
your title, and a trial is had. And the courts have gone so far as to 
protect the divorced wife of a scalawag who haunts the house and 
the neighborhood and makes her life miserable by his conduct. 

“This array of instances in which the court acts is formidable. 
But it is not complete. The area of jurisdiction is as wide as that of 
human rights invaded by unscrupulous men. Are all these remedial 
measures to be abolished, because they are ‘ government by injunc¬ 
tion’? In all the above cases the judge alone tries the case, finds 
the facts, and makes the order—if he is not obeyed he cites the party 
for contempt and may or may not try the question himself. The 
court compels the wrongdoer to desist from this work, because he is 
invading the rights or property of his fellow man. All this is ‘ gov¬ 
ernment by injunction’—viz, compelling a man to do his duty to 
his neighbor. Can any laboring man point out the difference between 
all these cases and the cases in which injunctions have been issued in 
strike cases? Can any lawyer put us wise? I think not. I do not 
so much blame the member of the union who trusts in his leaders 
and their legal advisers. But I do blame the leaders who are 
endeavoring to make them believe that they are the victims of 
usurping courts, who ignore their rights and trample them down, 
when there is no proof and none can be provided. I have a firm 
belief that a large portion of the union men do not understand the 
situations. I speak to you, and through you to them, as I now do. 
These men are among the most intelligent of our laboring class. 
In legal matters they are not learned; they need our help, not our 
abuse. And we owe to them all the help in our power to come to a 
just decision. It is not enough in a republic to say that such is the 
law and condemn everyone who does not obey. A further duty we 
owe to the public, viz, to prevent it from falling into disrepute by 
false charges of favoritism, oppression, usurpation, etc., unchallenged 
and undenied. We want not only a law-abiding community. We 
want a contented community. And it is a good sign of the times 
that many employers are adopting methods in their relation to their 
employees that may bring about such a result. Perfect peace is not 
possible. But let us have all we can. 

“Now I base my hope of good results from education and publicity 
upon what I know after long experience of efforts to throw the 
labor union question into politics. It has rarely been successful. 
I have one very striking instance in my mind. The Ohio constitu¬ 
tional convention of 1912 was practically in the hands of labor. 
Many amendments were proposed to our constitution and, under 
the belief that change means progress, many of them were adopted 
by the people, some valuable. The subject we are now discussing 
was under consideration and the convention adopted the following, 
being section 21 of Article IV: 

“Sec. 21. Laws may be passed, prescribing rules and regulations for the conduct of 
cases and business in the courts of the State, regulating proceedings in contempt, and 
limiting the power to punish for contempt. No order of injunction shall issue in any 
controversy involving the employment of labor, except to preserve physical property 
from injury or destruction; and all persons charged in contempt proceedings with the 
violation of an injunction issued in such controversies shall upon demand be granted 
a trial by jury as in criminal cases. 

“It was voted on by the people in September, 1912, as a section 
by itself. This was labor’s pet proposal. 


GOVERNMENT BY INJUNCTION. 


11 


“ Now look at the result. The people voted it down by a majority 
of 16,406. Cuyahoga County voted yes by about 30,0(X), Hamilton 
yes by 20,000, Lucas yes by 8,000, and Franklin by 1,700. 

‘‘Contrast the vote in the great manufacturing centers in the 
Miami Valley. In the counties of Montgomery, Clark, Miami, 
Greene, Shelby, Preble, Warren, Butler, and Darke the majority 
against the amendment was 11,500—only two counties voting yes, 
one by 100 votes, the other by 240. 

“This result shows what discussion will do. A vigorous campaign 
of instruction brought it about. Labor could not rally its members 
in a body in support of its platform. The question is settled in 
Ohio. 

ELECTIVE JUDICIARY. 

“Two more points remain to be considered. The union leaders 
demand that the Federal judges shall be elected by the people and for 
terms of six years only. 

“Whatever may be said for or against an elective judiciary in 
counties, districts, or States, one can not help believing that an elec¬ 
tive Federal judiciary would be the downfall of the whole system. 
Our forefathers discussed these matters most fully, and it was con¬ 
cluded that in a combination of independent States a thoroughly 
independent and separate judicial system was essential to its success. 
Let us imagine what would result if labor’s plan was adopted. First, 
we should have primary elections over the whole United States, 
involving the candidates in a campaign to become known. Then we 
should have a campaign of election. Eveiy conceivable political 
trick would be put in use by friends or advocates of the candidates. 
There would be combinations of States, candidates, or of special 
interests, politicians, etc. Money would be contributed by the friends 
of the candidates, having schemes to promote or ends to subserve, and 
the bench would become the roosting place of rich lawyers, or law¬ 
yers having rich friends, or backed by interests or classes, and they 
would in all probability reach the bench, leaving behind them their 
independence, at least, the chief jewel in the crown of the judge. 
But I do not fear that labor will ever achieve its point. It is not 
to its interest that it should. The Constitution provides expressly 
that all Federal judges shall be appointed during good behavior, and 
an amendment would be necessary to change it. And when change is 
attempted there will be ample time for discussion. 

“One more demand is to be considered. It is that Congress shall 
take action to prevent the Federal courts from declaring an act of 
Congress unconstitutional. Such actions by the courts is declared to 
be ‘usurpation.’ 

“Why the federation did not also denounce similar actions by State 
courts as to acts of the State legislature, and as to acts of Congress, 
one can not conceive. All State supreme courts exercise now the 
power to declare State laws or Federal laws unconstitutional; and 
they exercise the power as inherent in the court without express 
grant, as a necessary result of our system of government. And why 
did it not denounce the exercise by Federal courts of the power to 
declare laws passed by the States unconstitutional, if these laws 
violated the Constitution of the United States—a power exercised 
every day ? 


12 


GOVERNMENT BY INJUNCTION. 


BAD LOGIC. 

“The facts and logic of the platform are bad. In early English 
days, before the Revolution, it was held by able English judges—Coke, 
Hobart, Holt, and others—that an act of Parliament contrary to 
Magna Charta, common right, or justice was void. The Revolution 
was largely based upon this denial of unlimited parliamentary au¬ 
thority. It was called a ‘lawyers’ revolution.’ John Adams said: 

“The stamp act, I take it, is utterly void and of no binding force upon us, for it is 
against our rights as men and our privileges as Englishmen. 

“As there was no court or tribunal to which our forefathers could 
successfully appeal, nothing was left but a resort to arms. 

“In the Articles of Confederation first adopted between the States, 
which was nothing more than a league, express power was granted 
to Congress to provide for the'settlement of disputes, and a method 
was adopted which was not satisfactory. 

11 When the Convention was in session, when our present Constitu¬ 
tion was adopted, the question we are now discussing was under 
consideration. I quote from the third report of a committee of able 
lawyers, five in number, made in January, 1917, to the New York 
State Bar Association: 

“Judicial review is a world-wide practice in federations. Judicial review of the 
validity of laws is as much a world-wide practice in federations as is the ratio at which 
gold and silver should be coined. Its only rival in federations is the German system 
of a Federal council (State government appointed without the voters of either the 
States or the Empire having any voice in the matter), which, when in accord with the 
Kaiser, had plenary or dictational powers. Madison, Washington, and Hamilton, 
with the support of the Virginia school, tried their best to incorporate a Federal coun¬ 
cil or council of revision into our Federal Constitution, but they were defeated by 
Massachusetts and the more democratic States. Then the fathers resorted to judicial 
review. (Citing Hamilton, Jefferson, Madison, and Farrand’s records of the Federal 
Convention.) 

“In a previous report by this same committee, made in November, 
1915, most exhaustive in its character, it proposed the following 
resolution, which was adopted by the State Bar Association of New 
York on January 15, 1916: 

1 'Resolved, That any contention that the Supreme Court of the United States in 
enforcing the Federal Constitution has usurped the power to pass upon the constitu¬ 
tionality of the legislation enacted by Congress is contrary to both the letter and 
spirit of the Fedaral Constitution, is unwarranted by the history of the United States, 
and by the history of federations possessing a written fundamental law, but without 
any Federal council with plenary powers to determine conflicts between the funda¬ 
mental law and ordinary statutes, and it is also contrary to the spirit of our Federal 
democratic Republic with 49 legislative units (1 federation and 48 States). 

“ Resolved , That the theory of our Government, State and National, is opposed to 
the deposit of unlimited power anywhere. 

“In the citation of European and other States having a similar 
system of ours a significant instance is referred to by the committee. 

“In Australia, the great labor Commonwealth, it was proposed to 
amend the constitution by providing that Parliament should have 
absolute and plenary power to make laws with regard to labor and 
employment, including the wages and conditions of labor and employ¬ 
ment in any trade, industry, and calling. This was voted dowrn by 
the people on a referendum April 16, 1911. 

“In Ohio none of our constitutions conferred power upon the 
judiciary to declare laws unconstitutional. The courts have exer¬ 
cised the power since the State was formed. It is an inherent power. 


GOVERNMENT BY INJUNCTION. 


n 

Our last constitutional convention provided a limitation upon the 
number of judges who should join in the opinion, thus recognizing 
the power as existing. 

“It is surprising that any question should ever have been made by 
lawyers on this point. Of course we expect nothing from politicians 
or agitators. As to lawyers we must, however, remember that we 
are not all cast in the same mental mold. A small number, com¬ 
paratively, of good men and able men have gone wrong upon this 
proposition as most of us see it, but their mental operations are dif¬ 
ferent from ours, their point of view is different, and their natural 
sympathies may overbalance their logical gifts. 

“What is the power to declare a law unconstitutional? It is not 
an academic question which can be decided unless a case arises be¬ 
tween individuals, involving rights. 

“As an example: A sues B, B answers and puts up his defense. 
A claims to be acting under a statute. B says that the statute is not 
good, that he i§ living under a government with a written constitu¬ 
tion and the statute is contrary to his rights as secured by the con¬ 
stitution. This right might be to vote, to be a free man, to own his 
own property, to belong to a religion, to exercise the right of free 
speech. Let me give you a more striking illustration. The platform 
denounces the Cummins railroad bill and all similar legislation as 
‘making slaves of the workers and establishing involuntary servitude.’ 
This is mere bombast. But, if true, the workers may need the 
thirteenth amendment to the Constitution to save them. It pro¬ 
hibits ‘involuntary servitude,’ and the law could be declared uncon¬ 
stitutional by the Supreme Court and would be if the claim was 
anything more than mere rhetorics. 

“To return to our case. The judge has the case to decide. The 
right of A under the statute is clear if the statute is good. But the 
right of B under the Constitution is equally clear. Must the statute 
prevail over the Constitution or must the court give effect to the 
agreement contained in the Constitution? The case must be de¬ 
cided. It must be remembered that no one can attack a law unless 
it interferes with his rights under the Constitution. Courts interpret 
wills, contracts, statutes, and all other instruments. Why not the 
Constitution ? If on interpretation of the Constitution its clauses 
conflict with the statute why shall the mere act of a legislature, 
passed probably in haste and frequently in ignorance, overcome the 
solemn agreement between the people under which they have agreed 
to be governed. 

“To you lawyers and judges this talk may seem prolix and foolish 
and unnecessary. If only lawyers are to decide the issues, the agree¬ 
ment is silly. This question has been before the people since the 
birth of the Union. The great law chieftain, John Marshall, started 
the ball in the early decision in Marbury v. Madison, upsetting an 
unimportant Federal law. The various States having passed laws in 
derogation of the Federal Constitution, on appeal to his court these 
laws were set aside. The powers of the Supreme Court became the 
football of politics for years, judges of the district court were im¬ 
peached, and the battle between the Federalists and Republicans 
was on for a long time. At one stage of the campaign John Marshall 
was burned in effigy in the streets of Baltimore. But when nullifica¬ 
tion came on in 1830 the people discovered in the discussion that 


14 


GOVERNMENT BY INJUNCTION. 


some tribunal was necessary in a government acting under written 
constitutions and the people settled down. There has been no im¬ 
portant disturbance until now. Those who are endeavoring to revive 
the questions must remember that the practice and the decision of 
courts in a country like ours, for the period of over 120 years, can not 
be denounced or overturned merely for the establishment of class 
legislation. 

“ Roosevelt said in 1911 that the right of the court would seem to 
be self-evident, that Marshall’s decision made him a great leader and 
was necessary to make the Constitution march. 

“Notice has been given that every candidate for Congress, or other 
office, will be stood up in the corner, and quizzed as to his views 
about the platform. Politics are to be ignored, and only those who 
fall down before the idol are to be supported. We can imagine the 
feelings of the unfortunate man. For once the politician will be 
brought to time! Of course it follows that if political affiliations are 
all to be thrown down, we can all vote as we please. „ 

“This address has gone far beyond what I contemplated. But it 
is my contribution, small as it is, to information upon subjects of 
vast importance to the public. 

“You who wish to inform yourselves more fully should possess 
yourselves of a book of great value, which has surprised me by the 
learning and exhaustive research shown by the various authors whose 
articles or speeches are reported. I refer to a book entitled ‘Judicial 
Settlement of International Disputes,’ containing the proceedings 
of the American Society for their settlement for the year 1916, pub¬ 
lished by Williams & Wilkins Co. of Baltimore. In the appendix 
to this volume will be found the voluminous and scholarly reports 
of the committee of lawyers to the New York State Bar Association, 
chiefly upon the subjects we have been discussing. It is a most 
complete compendium of the law and practice of the whole civilized 
world upon the powers we have been considering. No lawyer should 
be without it. 

“The great tribunal of our country—to my mind the greatest in 
the history of the world—is threatened by dreamers, agitators, and 
timid politicians. It is the foundation of our Government. This court 
has settled by judicial decision disputes among the States of our 
Union in over 70 cases, many of which would have led to war but 
for the dignified tribunal established by law to finally decide such 
questions. Shall it have no power to preserve constitutional right? 
Let us preserve the independence, the learning, the integrity, and the 
impartiality of that court as the corner stone of our Republic. And 
upon us lawyers rests the great duty, and it should be our great 
pleasure as well, to step into the breach, to inform our fellow citi¬ 
zens, and in the true spirit of the educator to scatter broadcast the 
knowledge that will provoke our people to do what is right, no mat¬ 
ter what is his occupation, his interest, or his association.” 

A few words more. In a few days I will be 87 years of age, a 
long life during a most eventful period. I have seen all our rail¬ 
roads built, our telegraphs and telephones, the aeroplane and the sub¬ 
marine invented, and electricity made as obedient as the horse. I 
have seen the country grow to 110,000,000 free and prosperous 
people. 


GOVERNMENT BY INJUNCTION. 


15 


1 have seen the War with Mexico, the Civil War, the War with Spain, 
ai d the terrible war just ended in which 2,000,000 American boys 
convinced Germany that her end had come. I have seen the Presi- 
d?nt of the United States liberate, by the stroke of his pen, 4,000,000 
of negro men, real slaves, and the whole race, free and slave, elevated 
to a political equality with the white. I have seen our President, 
speaking from the pinnacle of his high office to the downtrodden 
people of the world, flooding it with more freedom than it coulci stand, 
but seeding all Europe with republics as plentiful as languages. I 
have seen women enfranchised in most of the civilized countries of 
the world, and an American-born woman elected and seated in the 
British House of Commons. And when I look over our country and 
behold it leading the world in the cultivation of the earth, the output 
of the factory, the number and value of its inventions, the size and 
number of its banks, insurance and trust companies, the extraordi¬ 
nary bulk of deposits in the laboring classes, the comfort in their 
homes, and the improvement in their wages and general prosperity, 
I wonder if this is the same country that the American Federation of 
Labor refers to in its platform, and who built or control all these great 
businesses, railroads, banks, factories, stores, and enterprises that 
have put America to the front? Are they dukes, princes, earls, 
counts, or barons, or their sons, or the son of the rich man ? By no 
means. 

Nine out of ten are the boys from the farm, only half educated, or 
from the factory with hardly a high-school education. They came 
from the so-called enslaved class. 

America is good enough for me, or for anyone else, although she is 
not perfect. But I take no stock in such Americans as foul their own 
nest, revile their Government and its officers, especially the honor¬ 
able judges of our courts, because of temporary evils, the necessary 
result of a great and wasting war. 

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